UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2067
UNITED STATES,
Appellee,
v.
PAUL LODER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin, Senior Circuit Judge,
and Pettine,* Senior District Judge.
Charles W. Rankin with whom Rankin & Sultan was on brief for
appellant.
James F. Lang, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, was on brief for appellee.
May 11, 1994
*Of the District of Rhode Island, sitting by designation.
PETTINE, Senior District Judge.
Defendant Paul Loder appeals his conviction for
aiding and abetting mail fraud in violation of 18 U.S.C.
2 and 1341. He asserts that the trial court erred in
denying his Motion for a Judgment of Acquittal in that the
government presented insufficient evidence at trial to prove
that he aided and abetted mail fraud. Furthermore, he
asserts that the trial judge erred in admitting into
evidence under Rule 801(d)(1)(B) certain conversations
between a government witness and another party. We REVERSE
the conviction, finding the evidence insufficient.
Therefore, we do not reach the Rule 801(d)(1)(B) issue.
I.
In September of 1987, David Morrison, who at the
time resided in a halfway house in Roxbury, Massachusetts,
contacted his brother, James Morrison, a captain in the
Boston Fire Department. David wished to purchase a new car,
but was unable to obtain credit, so he asked James to
purchase and register the car in his own name, using money
supplied by David both for the down payment and for all
subsequent car payments. James agreed, and purchased the
car, a 1987 Chevrolet Caprice ["the Caprice" or "the car"],
in the manner outlined. General Motors Acceptance
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Corporation ("GMAC") financed the purchase, and the car was
insured, in James Morrison's name, through Aetna Insurance
Company ("Aetna"). David Morrison took possession of the
car.
One night in the following month, October 1987,
James Morrison was at work at a firehouse on Oliver Street
in Boston. His brother, David Morrison, appeared at the
firehouse in an intoxicated condition, and informed him that
something had happened to the car, that it was in the middle
of an intersection close to the firehouse, and that it
"won't go." [Tr. 2: 129] James went to look at the car,
realized that the frame appeared to be broken, and had it
towed to a lot beside the firehouse. A few days later,
David again visited James at the firehouse, and later on the
same day the brothers communicated by telephone. On the
following day, a tow truck showed up at the firehouse, the
driver asking for James Morrison. James provided him with
the keys to the Caprice, after which the driver towed the
car away.
A day later, James Morrison reported to the Boston
Police that the car had been stolen from outside the
firehouse on Oliver Street. He also filed an insurance
claim with Aetna, again claiming that the car had been
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stolen. Aetna allowed the claim and issued two checks dated
December 12, 1987. Both checks were sent by mail to the
designated payees, the first in the amount of $14,545.05 to
GMAC (the basis of Count 3 of the indictment) and the second
in the amount of $1,750.95 to James Morrison (the basis of
Count 4 of the indictment).
The story now shifts to a United States government
facility in Watertown, Massachusetts, where the Chevrolet
Caprice next appeared. This facility was run by the General
Services Administration ("GSA") and consisted of a large
field and a number of warehouses. GSA operated a firing
range at the Watertown facility which was used by a number
of federal law enforcement agencies and which was staffed by
Justin Gleason, a Federal Protective Services ("FPS")
Sergeant. The warehouses were used by several federal
agencies (IRS, DEA, Customs, GSA), primarily for storage.
Some space at the Watertown facility was leased to private
companies, among them Warner Brothers, which used the space
to store vehicles used in the filming of the television
series Spenser for Hire ("SFH"). Pursuant to lease
agreements with GSA, Warner Brothers rented Building 236
from October 1985 through June 1987; upon the expiration of
the lease GSA informally extended the tenancy until November
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1987. Building 236 was used by the SFH special effects and
transportation crews. The transportation crew, which
transported cars, trucks, and trailers between Building 236
and filming locations around the Boston area, was comprised
of members of Local 25 of the Teamsters Union. These
members included defendant Paul Loder, who worked as a
driver, and his co-defendant, Richard Murray, who worked as
a "co-captain" of the transportation crew. Murray also
owned Star Auto Parts in Somerville, Massachusetts, a
company that was licensed to buy and sell auto parts and to
operate a junkyard, and, prior to the events of this case,
Loder had worked there for Murray.
Another of the buildings at the Watertown
facility, Building 234, contained a fenced off space where a
number of new FPS police vehicles were being stored. Justin
Gleason,1 the FPS Sergeant who staffed the firing range,
1Justin Gleason was indicted for two counts of receiving
unlawful gratuities in return for overlooking unlawful
activities at the Watertown facility. He was charged with
receiving the use of two Ford cars, a 1987 Thunderbird and a
1988 Country Squire Wagon, that had been furnished to SFH by
Ford Motor Company for filming purposes. These cars had
been subject to water damage so, although they appeared to
be in excellent condition, Ford would not sell or warranty
them and instead furnished them to SFH to be used for
special effects purposes. In September of 1990, a jury
returned a guilty verdict against Gleason on these two
counts of receiving gratuities. At his sentencing hearing,
Gleason agreed to cooperate with the government in return
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testified that in the fall of 1987 he became aware that a
1987 Chevrolet Caprice was parked among the FPS vehicles.
Running a Vehicle Identification Number ("VIN") check, he
learned that the Caprice was registered to Morrison. Asking
Murray about the car, Gleason was informed that Murray "had
been roped into something that he can't get out of and he
was going to get rid of it." [Tr. 2:193] In this
conversation and subsequent conversations, Gleason asked
Murray repeatedly to remove the car from Building 234. In
one of these conversations, Murray told Gleason that the car
was registered to "a high official, the captain of a fire
department," and that the car was in a damaged condition
because "somebody got drunk and ran over a Jersey barrier."
[Tr. 2:194] Gleason also testified to having a conversation
with Loder about the Chevrolet Caprice, in which Loder said
that he was helping Murray get rid of the car and that he
for a recommendation by the government that he be sentenced
to probation only. He did in fact receive a sentence of
probation. Gleason testified before the grand jury and at
trial as an immunized witness. At trial, the information as
to Gleason's guilty verdict, sentencing, and immunization
was presented to the jury on direct examination. This gave
rise to defendant's second claim on appeal, that the lower
court erred in permitting the government to introduce prior
consistent statements of Gleason to Adams because it was the
government, not the defendant, who first raised the issue of
Gleason's credibility in its opening statement and in direct
examination of Gleason. Because we grant defendant's motion
for acquittal, we do not reach this second issue.
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had "taken the plate off for insurance." [Tr. 2:195]
Finally, Gleason testified that, when he went to the
Watertown facility one weekend, he discovered the front gate
open. He went to Building 234 and there he saw Murray and a
second individual whose face was obscured by a welder's mask
cutting the top off the Caprice. He again told Murray to
get the car out of the building, and when he returned later
the Caprice was gone.
On November 5, 1987, during the course of an
investigation into the activities at the Watertown facility,
FPS Criminal Investigator William Adams noticed two vehicles
in that area that did not belong to FPS -- a vehicle
belonging to Justin Gleason, and the Chevrolet Caprice
registered to James Morrison. Adams and Gleason were long-
standing acquaintances, having met in 1978. In a
conversation on November 5, Gleason told Adams that he had
made arrangements to keep the vehicle in storage for a few
weeks until it could be cut up. By running the VIN through
the National Crime Information Center ("NCIC") computer,
Adams learned that the Caprice had been reported stolen on
October 28, 1987. Adams arranged for a special agent of the
Internal Revenue Service ("IRS") to come to the site on
November 25, 1987 to take pictures of the Caprice. Adams
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conducted surveillance, and at some point after November 25
he noticed that the car had been removed; however, he did
not know precisely when the car was removed from the
Watertown GSA facility.
Between December of 1987 and early summer of 1988,
Adams, without Gleason's knowledge, tape recorded a number
of conversations between Adams and Gleason. In a taped
conversation on February 8, 1988, Gleason told Adams that
Murray hid the car "until they could get rid of it" and that
Murray said he wanted to get the parts from the car. [Tr.
3:112-114] The tapes, however, did not corroborate
Gleason's testimony that he had seen Murray and another,
unidentified person cutting up the Caprice. Furthermore,
Gleason did not say to Adams on tape that Loder admitted to
Gleason that he helped Murray to get rid of the car,
although Gleason later testified that Loder did indeed admit
to this.2
2Defendant argues that several facts call Gleason's
credibility, which is central to Loder's conviction, into
question. Gleason testified to consulting with a
psychiatrist shortly after his conviction due to fear of
being accused of something he did not do. He further
testified to taking a number of medications, due both to his
psychiatric condition and to a back injury, which affected
his memory, particularly with regard to dates. Gleason
denied ever using a counterfeit Massachusetts Police license
plate on his car, but Adams and Belmont Police Detective
John Trischetta testified to seeing a fake police plate on
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II.
When a defendant challenges his criminal
conviction, claiming that the government failed to present
sufficient evidence to prove the defendant guilty of the
charged crime, the court is faced with a formidable standard
of review. In examining such a challenge, the court must
"view the evidence, together with all reasonable inferences
that may be drawn therefrom, in the light most favorable to
the government," United States v. Campa, 679 F.2d 1006,
1010 (1st Cir. 1982), and while so doing, must ask whether
"a rational trier of facts could have found guilt beyond a
reasonable doubt." United States v. Ingraham, 832 F.2d 229,
239 (1st Cir. 1987), cert. denied, 486 U.S. 1009 (1988).
See also United States v. Torres Lopez, 851 F.2d 520, 527
(1st Cir. 1988), cert. denied 489 U.S. 1021 (1989). The
court must apply this standard both to direct and to
circumstantial evidence; "[c]ircumstantial evidence is
intrinsically no different from testimonial evidence, and is
entitled to similar weight." United States v. Van Helden,
920 F.2d 99, 101 (1st Cir. 1990) (citations omitted). Thus,
Gleason's car. Finally, Gleason testified to obeying all
terms and conditions of his federal parole, but on cross
examination he conceded that he had been convicted of
shoplifting while on federal parole, although no action had
been taken against him by his probation officer.
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the government may use circumstantial evidence to prove its
case. However, the total evidence, with all reasonable
inferences made in the light most favorable to the
government, must be such that a rational trier of fact could
have found guilt beyond a reasonable doubt. United States
v. Mena, 933 F.2d 19, 23 (1st Cir. 1991); United States v.
Campa, 679 F.2d at 1006. Furthermore, the government need
not present evidence that precludes every reasonable
hypothesis inconsistent with guilt in order to sustain a
conviction. United States v. Guerrero-Guerrero, 776 F.2d
1071, 1075 (1st Cir. 1985), cert. denied, 475 U.S. 1029
(1986). Rather, the jury is at liberty to select freely
among a variety of reasonable alternative constructions of
the evidence. United States v. Smith, 680 F.2d 255, 259
(1st Cir. 1982), cert. denied, 459 U.S. 1110 (1983).
Finally, this court reviews a district court's denial of a
defendant's motion for a judgment of acquittal
using the identical standard employed to
measure the sufficiency of evidence
supporting a guilty verdict.
Accordingly, we must determine whether,
viewing all the evidence in the light
most favorable to the government,
including all reasonable inferences to
be drawn from such evidence, a rational
trier of fact could have found guilt
beyond a reasonable doubt.
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United States v. Sanchez, 943 F.2d 110, 114 (1st Cir. 1991)
(citations omitted).
The mail fraud statute makes it a crime to use the
United States Postal Service or mails to execute a scheme or
artifice devised to defraud by means of false or fraudulent
pretenses, representations or promises.3 There is no doubt
3The specific language of the mail fraud statute is as
follows:
Whoever, having devised or intending to
devise any scheme or artifice to
defraud, or for obtaining money or
property by means of false or fraudulent
pretenses, representations, or promises,
or to sell, dispose of, loan, exchange,
alter, give away, distribute, supply, or
furnish or procure for unlawful use any
counterfeit or spurious coin,
obligation, security, or other article,
or anything represented to be or
intimated or held out to be such
counterfeit or spurious article, for the
purpose of executing such scheme or
artifice or attempting so to do, places
in any post office or authorized
depository for mail matter, any matter
or thing whatever to be sent or
delivered by the Postal Service, or
takes or receives therefrom, any such
matter or thing, or knowingly causes to
be delivered by mail according to the
direction thereon, or at the place at
which it is directed to be delivered by
the person to whom it is addressed, any
such matter or thing, shall be fined not
more than $1,000 or imprisoned not more
than five years, or both. If the
violation affects a financial
institution, such person shall be fined
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that the evidence supports a finding that James and David
Morrison were guilty of mail fraud; they submitted false
insurance claims to Aetna and Aetna issued, through the
United States mails, settlement checks to James Morrison and
GMAC. The Morrisons were the principals in this scheme of
mail fraud. At issue is whether the government has
succeeded in presenting evidence sufficient to show that
Paul Loder is guilty of aiding and abetting the Morrisons in
committing mail fraud.
The aiding and abetting statute defines the crime
of aiding and abetting as follows:
(a) Whoever commits an offense against
the United States or aids, abets,
counsels, commands, induces or procures
its commission, is punishable as a
principal.
(b) Whoever willfully causes an act to
be done which if directly performed by
him or another would be an offense
against the United States, is punishable
as a principal.
18 U.S.C.A. 2 (West 1969). In order to find a defendant
guilty of aiding and abetting, the government must show both
that the principal committed the underlying substantive
crime, United States v. McNatt, 813 F.2d 499, 502 (1st Cir.
not more than $1,000,000 or imprisoned
not more than 30 years, or both.
18 U.S.C.A. 1341 (West Supp. 1994).
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1987); United States v. Perez, 922 F.2d 782, 785 (11th
Cir.), cert. denied, 111 S. Ct. 2840 (1991), and that the
defendant "associated himself with the venture, participated
in it as something he wished to bring about, and sought by
his actions to make it succeed." United States v. Garcia-
Rosa, 876 F.2d 209, 217 (1st Cir. 1989). See also United
States v. Lema, 909 F.2d 561, 569 (1st Cir. 1990); United
States v. Delgado Figueroa, 832 F.2d 691, 696 (1st Cir.
1987).
Several cases offer guidance as to the degree of
knowledge that a defendant must possess in order to satisfy
the second prong of the definition of aiding and abetting.
"In order to convict a defendant of aiding and abetting, the
government must prove that the defendant in some way
associated himself with the fraudulent scheme and that he
shared the criminal intent of the principal." United States
v. Serrano, 870 F.2d 1, 6 (1st Cir. 1989) (emphasis added)
(citation omitted). See also United States v. Valencia, 907
F.2d 671, 680 (7th Cir. 1990) ("The state of mind required
for conviction as an aider and abettor is the same state of
mind as required for the principal offense."); United States
v. Barclay, 560 F.2d 812 (7th Cir. 1977) (appeals court
reversed a conviction for bank fraud and abetting bank fraud
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because the trial judge's instructions permitted the
defendant to be convicted without finding that he knew that
the principal was going to make a false entry with the
specific intent to defraud the bank, and without finding
that the defendant shared the principal's specific intent to
defraud the bank); United States v. Gallishaw, 428 F.2d 760
(2d Cir. 1970) (when defendant supplied a machine gun to
principal which principal later used in a bank robbery, the
appeals court reversed defendant's conviction for conspiracy
to commit a bank robbery and aiding and abetting a bank
robbery because trial judge's instructions allowed jury to
convict defendant without a finding that defendant shared
principal's specific intent to rob a bank). The specific
intent requirement of the crime of aiding and abetting
requires that the defendant consciously share the
principal's knowledge of the underlying criminal act; "[a]
general suspicion that an unlawful act may occur is not
enough." United States v. Labat, 905 F.2d 18, 23 (2d Cir.
1990). However, the government may prove its case through
circumstantial evidence, and need not preclude every
reasonable hypothesis in order to sustain a conviction. See
supra pp. 6-7. Also, "[i]t is well settled that a culpable
aider and abetter need not perform the substantive offense,
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be present when it is performed, or be aware of the details
of its execution." United States v. Garcia-Rosa, 876 F.2d
at 217 (emphasis added) (citation omitted).
In order to sustain a conviction in the instant
case, the government must show that the defendant, Paul
Loder, consciously shared in the specific criminal intent of
the principals, the Morrisons, to commit mail fraud. In
other words, the government must present evidence that would
allow a rational trier of fact to conclude that Loder had
knowledge that he was furthering mail fraud. Although he
need not be aware of all the details of the mail fraud, a
general suspicion on Loder's part that his participation in
dismantling the Caprice was "for some nefarious purpose"4
is not enough to make him guilty of aiding and abetting mail
fraud.
In this case, the government claims that the
record supports the conclusion that Paul Loder was aware of
4Near the close of the evidence, the judge made the
following comment at a side bar conference:
I don't understand the evidence. You
say these two guys get a car and they
cut it up. Certainly they have to know
when they cut up a brand-new car that
there is some nefarious purpose.
(Tr. 4:7). Accepting the trial judge's characterization of
what the defendant would "have to know," the requirement
that the defendant share the specific criminal intent of the
principal would still not be met.
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the fraudulent scheme planned by the Morrisons, and that he
was a willing participant in that scheme. In support of
this assertion, the government points to several pieces of
evidence: Loder had, in the past, worked for Murray at
Murray's auto parts store and was currently Murray's
subordinate on the transportation crew of SFH; Gleason
testified that, in separate conversations with him, both
Murray and Loder had talked about getting rid of the
Caprice, and Loder mentioned keeping the license plate for
insurance; Gleason also testified that he saw Murray and
another person whose face was obscured by a welding mask
cutting the roof off of the Caprice in a government
warehouse on a weekend; and the Caprice, although damaged,
was a brand new car. The government argues that a rational
trier of fact could reasonably infer from this evidence that
Loder and Murray were responsible for the Caprice, had
dismantled and disposed of it, and did so for some nefarious
purpose. The government further maintains that the jury
could as easily have inferred or concluded from the evidence
that the nefarious purpose was that of a fraudulent
insurance scheme as that the nefarious purpose was that of
disposal of a stolen car. The defendants counter with the
argument that even if the evidence would allow a jury to
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conclude that Loder participated in dismantling the car and
knew there was something wrong with doing so, the government
has nevertheless failed to show the specific intent and
knowledge necessary to sustain a conviction of aiding and
abetting in mail fraud.
The government contends that the evidence supports
a finding that Loder did have specific knowledge of the
Morrisons' insurance scam and that he acted in willful
furtherance of the scam. They first maintain, and this
court agrees, that based on Gleason's testimony, the jury
could appropriately conclude that Murray had knowledge of
the Morrisons' identity, of the circumstances of the
accident in which the Caprice was damaged, and, most
importantly, of the Morrisons' fraudulent insurance claim.
The prosecution then asserts that "[b]ecause the defendant
and Murray dismantled and disposed of the car together, the
jury could reasonably conclude as well that Murray passed
such information on to the defendant in explanation of the
purpose of their efforts." (Appellee's Br. at 20) This
assertion is at the core of the government's case; if a
rational jury could reasonably infer from the evidence
presented first that Loder did help Murray to disassemble
the Caprice and second that Murray explained the mail fraud
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scheme to Loder, then this court must uphold Loder's
conviction.
The question then, is whether these two inferences
are indeed reasonable. This court finds that the first
inference, that the person helping Murray to dismantle the
Caprice was Paul Loder, is reasonable. Although the face of
the person that Gleason saw helping Murray was obscured by a
welding mask, Gleason nevertheless testified that Loder told
him that he helped Murray to get rid of the Caprice. Should
the jurors chose to believe Gleason, it is reasonable for
them to conclude that Loder did as he said he would do and
helped Murray to dismantle the car. Indeed, such a
conclusion would be supported by Loder's own admission of
actual participation. It is true that Gleason did not
mention Loder's admission of helping Murray while Gleason
was on tape. However, a reasonable jury could nonetheless
have believed that Loder did tell Gleason that he helped to
dismantle the car. Likewise, the defendant's concerns as to
Gleason's reliability as a witness are not sufficient to
endanger the jury's factual finding with regard to Loder.
Drawing, as we must, all reasonable inferences in the light
most favorable to the government, we find that nothing would
inhibit a rational jury from believing Gleason and
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concluding that Loder assisted Murray in disassembling the
Caprice.
However, we reject the notion that a rational jury
could have reasonably made the second inference at issue.
To assume that just because Murray and Loder dismantled the
car together therefore Murray told Loder that they were
doing so in furtherance of a scheme of mail fraud, is
unreasonable and implausible. This court finds that no
evidence at trial was presented that would allow a rational
trier of fact to conclude that Murray conveyed this
information to Loder. No one testified to telling Loder
about the mail fraud, no one testified that Loder mentioned
knowing about the mail fraud, no one even testified to being
told that Loder had been told about the mail fraud. While
it is true that circumstantial evidence must be given the
same weight as testimonial evidence in determining
sufficiency of the evidence, in this case, even giving the
government the benefit of the doubt, the circumstantial
evidence is too weak to support a reasonable inference of
guilt.
We have also considered whether a reasonable jury
could conclude -- even without any direct disclosure to
Loder by Murray -- that Loder must have known that insurance
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fraud was the objective in destroying the car. If the
surreptitious destruction of cars occurred only for this
purpose, or at least rarely for any other, that might be
enough for a jury to infer knowledge on Loder's part. But
in fact there are other plausible reasons for such an action
(e.g., "chopping" a stolen car to recover parts; destroying
the evidence of another crime such as bank robbery or
kidnapping). Thus, absent additional evidence, we do not
think that a jury could conclude beyond a reasonable doubt
that Loder must have known that the purpose in this instance
was insurance fraud. This court declines to sustain Paul
Loder's conviction.
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